Authored By: Christopher Pearsall, RI Divorce Attorney
a.k.a. " The Rhode Island Divorce Coach ℠ "
QUESTION: My husband left his cell phone (which I pay for and is in my name) open and logged into Facebook. I looked at his phone and saw and recorded (through screen shots) a conversation he was having with another individual. In this conversation, he spoke candidly about matters for which I am currently divorcing him. Can I use this documented conversation in a legal setting or is it inadmissible?
ANSWER: As any good family law lawyer would (or should) tell you, it depends upon how you present it and which family court judge you have. Technically under the Rules of Evidence it is, at first glance, hearsay and therefore on its face could be considered inadmissible if a judge didn't look deeper and you didn't give a reason for the judge to find it to be admissible.
Generally, you want to find a way to get the records in as an exception to hearsay, or you want to get them in as a business record from your cellphone company.
It's a bit harder than it sounds. If I were to stick to basics, you could subpoena the records from your cellphone company and have them certify them or have a person known as the Keeper of the Records appear to testify that they are authentic records. Then you simply need to have some questions to show the court why the records are relevant in the case and something the judge should hear. This is a very basic description but essentially that is what it breaks down to in its fundamental elements.
The other way is to find an exception to the hearsay rule. So you have an out of court statement like the digital conversation that is important to your case somehow and you want the judge to be able to hear it and consider it. You cannot offer the statement directly to the court to try to prove that what is done or said by the statement is true. (Actions, statements, and even omissions can be considered statements by the court.)
If you believe your husband is having an affair because of the digital conversation and it has made you a nervous wreck and forced you to get counseling and because of that you think you deserve a greater share of the assets then you can show that they made calls back and forth by the calling records, texting records and yes the digital conversation. You are not trying to prove that what your husband said in the digital conversation is true. You are then offering the digital conversation to show that your husband and the woman were communicating frequently in a variety of ways. It doesn't matter if the conversation says that he is going to meet the woman after work at the Motel 6. You aren't offering it to prove that they actually did that. You are offering it to show how frequently they were communicating. There you go. It is no longer for its truth, it's offered to show they communicated frequently and that's why you became a nervous wreck.
There are other exceptions but those are another day.
To answer your question. Yes, if the digital Facebook conversation is important enough and it is relevant to your legal proceedings then you can find a way to make the conversation admissible. Whether the judge accepts the way you came up with is another story entirely.